Patna High Court
Ramnath Sahani vs Sm. Sukumari Sinha And Ors. on 25 August, 1953
Equivalent citations: AIR1954PAT211, 1953(1)BLJR593, AIR 1954 PATNA 211
ORDER
1. The petitioner, Ramnath Sahani, is tenant of a house located in holding No. 92, Mithapur B and C area, Patna. The opposite party, Shrimati Sukumari Sinha, is the landlord of the house. On 11-10-1952, the opposite party applied before the House Controller of Patna for evicting the petitioner on the ground that there had been non-payment of rent for September, 1952. The petitioner showed cause before the House Controller alleging that the rent for the house up to August, 1952, had been, paid and that repairs had been effected to the building to the extent of Rs. .52-6-0. The petitioner claimed that there was an oral agreement between him and the landlord that repairs would be made to the building and the cost would be set off towards the amount of rent due. The House Controller did not accept the case of the petitioner that there was an oral agreement between the landlord and the tenant or that repair work to the extent of Rs. 52-6-0 had been effected. The House Controller found! that there was non-payment of rent on the part of the petitioner, and passed an order of eviction.
An appeal was taken by the petitioner to the Collector against the order of the House Controller, but the appeal was dismissed. An application in revision was filed before the Commissioner, but that application was also rejected. Thereafter, the petitioner instituted a title suit in the Court of the Munsif at Patna for a declaration that the order of the House Controller was illegal and without jurisdiction. The petitioner also asked for an order of injunction, pending the hearing of the suit, restraining the opposite party from taking out execution of the order of the House Controller. On 21-5-1953, the Munsif refused to grant temporary injunction. An appeal was preferred against that order in the Court of the District Judge. An ad interim injunction was granted, in the first instance, by the District Judge. After hearing the parties, the Additional District Judge, to whom the case was transferred, vacated the order of ad interim, injunction.
2. Civil Revision No. 477 of 1953 is preferred on behalf of the petitioner against the order of the Additional District Judge, dated 4-6-1953, refusing to grant temporary injunction. Miscellaneous Judicial Case No. 271 of 1953 is an application made on behalf of the petitioner under Article 228 of the Constitution for transfer of the title suit to the High Court on the ground that it involves substantial question of law as to the interpretation of the Constitution. Miscellaneous Judicial Case No. 272 of 1953 is an application under Article 226 of the Constitution for an appropriate writ "restraining or prohibiting the opposite party from executing the orders of the House Controller dated 6-1-1953" on the ground that the order of the House Controller was beyond his competence and jurisdiction.
3. It would be convenient to deal with Miscellaneous Judicial Case No. 272 of 1953 in the first instance. The main question argued related to the constitutional validity of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, as amended by various Amending Acts, including Bihar Act 5 of 1953. The argument on behalf of the petitioner was :
(1) that the Bihar Legislature had no power to create the office and jurisdiction of the House Controller;
(2) that the Bihar Act 5 of 1953 could not revive and re-enact the Act of 1947 which had already expired; and (3) that the Bihar Act 5 of 1953 was constitutionally invalid since the legislative authority was exercising judicial power.
All these arguments were examined by this Bench in -- 'Kedarnath Gupta v. Nagendra Narayan Sinha', AIR 1954 Pat 97 (A) in which judgment was pronounced on 4-8-1953- All the arguments were rejected as unsound, and it was held that the Bihar Act 3 of 1947, as amended by the various Amending Acts, was constitutionally valid and operative.
4. Mr. B. C. Ghosh nevertheless took an additional point in this case. The contention of learned Counsel was that the Bihar Act of 1947, as subsequently amended, violated the guarantee under Article 19(1)(f) of the Constitution. It was contended, in the first place, that under Section 11 of the Act the authority of the House Controller in making an order of eviction against a tenant, if he was satisfied that the tenant was liable to be evicted under the provisions of Sub-section (1), was too wide. Learned Counsel also referred to Section 18(3) of the Act which made the decision of the House Controller final subject to the decision of the Commissioner and the further provision that it shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision.
In this connection, learned Counsel also referred to the decision of this Bench in 'AIR 1954 Pat 97 (A)' and to the decision of the Supreme Court in -- 'Brijraj Krishna v. S. K. Shaw and Brothers', AIR 1951 SC 115 (B), in which it was held that, as a matter of construction, Section 11 of the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is nonpayment of rent or not, as welt as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. The complaint of the learned Counsel, in the first place, is that the matter of eviction is left to the "Subjective satisfaction" of the House Controller, and the procedure is not reasonable within the meaning of Article 19(5) of the Constitution of India.
In the second place, learned Counsel said that the decision of the House Controller as to whether there was non-payment of rent or whether the other conditions for the eviction of a tenant were fulfilled or not, is not a justiciable issue which can be agitated in a Court of Law. The argument is that unless the decision of the Controller can be tested in a Civil Court, and unless the Act makes a provision to this effect, the restriction imposed on the right of the tenant is not reasonable within the meaning of Article 19(5) of the Constitution of India.
5. Before dealing with these two questions, it is necessary, at the outset, to examine whether the impugned Act prejudicially affects the rights of the tenants under Article 19(1)(f) of the Constitution. On this point, it was submitted by the learned Counsel that Section 11 makes provision for evicting a tenant on the ground of non-payment of rent even though it may not be a breach of the conditions of the tenancy. There appears to be some force in this argument, but on further consideration it will be apparent that the provisions of Section 11 as also the other provisions of the impugned Act have been passed in the interests of tenants. The question has been discussed at some length in the Full Bench decision of this Court in -- 'Mangtulal v. Radha Shyam', AIR 1953 Pat 14 (FB) (C).
It was pointed out in that case that Section 11(h), T. P. Act empowered a landlord to determine a lease of immovable property by giving a notice to quit. Section 106 of that Act provided that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes should be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by 6 months' notice expiring with the end of a year of the tenancy; & a lease of immovable iproperty for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
These provisions of the Transfer of Property Act are superseded by Section 11 of the impugned Act under Section 11, a tenancy may not, therefore, be determined by the landlord on giving a notice to quit nor is the lessee liable to put the lessor into possession of the property on the determination of the lease. Section 2 of the Act is also important. That section defines a "tenant" to mean any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour. By giving this artificial meaning to the word "tenant" the landlord is prevented from evicting a person whose tenancy has been determined by a valid notice to quit and who is in pos-session of the building as a trespasser. Section 11, therefore, adversely affects the rights of the landlord, and to that extent is a provision which is beneficial to the tenant.
Section 12(1) of the Act provides that if a tenant, who is in possession of any building for limited time, intends to extend the time limited by such lease by not less than six and not more than twelve months, he may give the landlord, at least one month before the expiry of the time limited by the lease, a written notice of his intention to do so; and upon the delivery of such notice, the said time shall, subject to the provisions of Section 11, be deemed to have been extended for the period specified in the notice. There are other provisions, like Sections 5, 6, 7 and 13 of the Act, which are mainfestly passed for the protection of the tenant. Upon a consideration of all these provisions of the impugned Act, it is clear that there is no violation of the guarantee under Article 19(1)(f) of the Constitution so far as the tenants are concerned, and the object of the Act is the protection of tenants by regulating the rent of the building and preventing unreasonable eviction.
6. Assuming, however, in favour of the petitioner that the Act violates the guarantee under Article 19(1)(f), the question must be examined whether the restrictions imposed are reasonable. The first point taken on behalf of the petitioner is that the satisfaction of the Controller under Section 11 of the Act is a "subjective satisfaction" -- and the restriction is not, therefore, reasonable from the procedural aspect. Learned Counsel relied upon the wording of Section 11(2) which states :
"A landlord who seeks to evict his tenant under Sub-section (1) shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1), he shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application."
The argument of Mr. B. C. Ghose on this point is, in our opinion, unsound. There is no justification for interpreting Section 11(2) to mean that the satisfaction of the House Controller must be a subjective satisfaction. The use of the expression "if the Controller is satisfied" is not conclusive. The question whether the satisfaction is objective or subjective is to be determined with reference to the whole Act. The word "satisfied" used in Section 11(2) must mean, "reasonably satisfied" and cannot import an arbitrary or irrational state of being satisfied. The satisfaction of the Controller must be based upon the materials placed before him by the parties concerned, for Section 11(2) provides that the Controller may pass the order of eviction only after giving the tenant a reasonable opportunity of showing cause against the application. Section 16 is also important in this context. Section 16(2) empowers Controller to summon and enforce the attendance of witnesses, and to compel the production of documents by the same means as is provided in case of a Court by the Code of Civil Procedure.
Section 18 is also an important provision. It states that any person aggrieved by an order passed by the Controller may within fifteen days from the date of receipt of such order by him prefer an appeal in writing to the appellate authority. Section 18(2) provides that if such an appeal be preferred, the appellate authority may -- (a) summarily dismiss the appeal, or (b) call for the records of the case from the Controller and after examining such records and, if necessary, making such further inquiry as he thinks fit either uphold the order of the Controller or reject it. Section 18B enables the Commissioner, either of his own motion or on application made to him, to revise any order passed by the Controller or by the appellate authority on appeal under this Act.
The provision for an appeal under Section 18 and the provision of making an application in revision under Section 18B are inconsistent with the view put forth on behalf of the petitioner that the satisfaction of the House Controller in Section 11 is subjective and not objective satisfaction. Construed in the light of these provisions and the context of the whole Act, it is manifest that! Section 11(2) of the Act must be interpreted to mean that the Controller should be reasonably satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1) before he makes the actual order of eviction, and the satisfaction contemplated in Section 11(2) is not a subjective satisfaction liable to be tested by the appellate authority under Section 18 and by the Commissioner in revision under Section 18B. The argument on behalf of the petitioner on this point must, therefore, be rejected.
7. Mr. B. C. Ghose referred, in the course of his argument, to the case of -- 'Liversidge v. Sir John Anderson', (1842) App Cas 206 (D) in which a question arose as to the meaning of the expression "if the Secretary of State has reasonable cause to believe any person to be of hostile association". It was held by a majority of the House of Lords that the expression in that particular context meant no more than that the Secretary of State had honestly to suppose that he had reasonable cause to believe the required fact. On that basis, it was held that the matter was one of subjective satisfaction of the Secretary of State and a Court of law could not enquire whether the Secretary of State had reasonable ground to believe. That case is not an authority for the proposition that the expression "has reasonable cause to believe" ought always to be interpreted in a subjective sense wherever it occurs in a statute irrespective of the context or the subject-matter of the particular enactment.
The decision in -- 'Liversidge v. Anderson (D)' does not lay down any general principle that the expression must be so understood in every enactment irrespective of the context. The decision in -- 'Liversidge v. Anderson (D)' only means that in the context and the attendant circumstances of that particular enactment in question the expression "has reasonable cause to believe" must be interpreted in the subjective sense and a Court of law cannot enquire whether the Secretary of State had reasonable grounds for his relief. The decision in the Full Bench case of -- 'Nek Mohammad v. Province of Bihar', AIR 1949 Pat 1 (FB) (E) also proceeded on the same grounds. The legislation in question in that case was a piece of emergency legislation, and, in the context and the attendant circumstances of that legislation, it was held by the Full Bench that though the word "satisfaction" must be interpreted to mean a reasonable satisfaction, a Court of law cannot sit in appeal over the decision of the authority making the order of detention provided always that the authority making the order acts in good faith.
The matter was fully considered in the decision of the Judicial Committee in -- 'Nakkuda Ali v. M. F. De S. Jayratne', (1951) AC 67 (F), in which the question at issue was whether in regulation 62 of the Defence (Control of Textiles) Regulations, 1945, the words "where the controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer" were to be treated as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation. It was held by the Judicial Committee that the words should be interpreted in an objective sense and the Regulation meant that there must in fact exist reasonable grounds known to the Controller before he can validly exercise the power of cancellation.
At pages 76-77 Lord Radcliffe states:
"Their Lordships do not adopt a similar construction of the words in regulation 62 which are now before them. Indeed, it would be a very unfortunate thing if the decision of --'(1942) AC 206 (D)' came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments. It is an authority for the proposition that the words 'if A. B. has reasonable cause to believe' are capable of meaning 'if A. B. honestly thinks that he has reasonable cause to believe' and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that. But the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood; and the dissenting speech of Lord Atkin at least serves as a reminder of the many occasions when they have been treated as meaning 'if there is in fact reasonable cause for A. B. so to believe'.
After all words such as these are commonly found when a legislature or law-making authority confers powers on a minister or official. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. No doubt he must not exercise the power in bad faith; but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality. Their Lordships therefore treat the words in regulation 62 'where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer' as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation."
8. The second point taken by learned counsel on behalf of the petitioner is that unless the Act provides that the decision of the Controller should be tested in a Civil Court, the restrictions imposed cannot be held to be reasonable within the meaning of Article 19(5) of the Constitution. In support of this proposition, Mr. B. C. Ghosh relied upon certain dicta in the Supreme Court's judgment in -- 'Raghubir Singh v. Court of Wards Ajmer', AIR 1953 SC 373 (G). It was argued in that case that the Ajmer Tenancy and Land Records Act, 1950, read with the Aimer Government Wards Regulation (1 of 1888) enabled the Court of Wards, in its own discretion and on its subjective determination, to assume the superintendence of the property of a landlord who habitually infringes the rights of his tenants and that the exercise of this discretion cannot be questioned in any manner in a Civil Court. It was further argued that the law enacted in Section 112 was not a reasonable restriction inasmuch as it completely negatived the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive. The argument succeeded in the Supreme Court, and it was held that Section 112 was invalid and was not saved either by Clause (5) of Article 19 or by Article 31-A of the Constitution, but the material facts of that case have no parallel to those of the present case.
In the Supreme Court case there was no machinery provided in the Act to determine the question whether the landlord was guilty of habitually infringing the rights of his tenants nor was there any right of appeal provided to the aggrieved landlord from the declaration of the Court of Wards. There was no provision for an appeal from the order of the Court of Wards to the Government or any other executive authority. It was observed by Mahajan J. that the provisions of Section 112 of the Act of 1950 were penal in nature and were intended by way of punishment of a landlord who habitually infringed the rights of his tenants; and that when a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law could not be held to be "reasonable" in any sense. The material facts of the present case are obviously different. There is a provision made in the Act to enable a tenant to show cause. There is provision made for an appeal and revision to higher authorities. There are other provisions made in the Act empowering the House Controller to summon witnesses and to call for production of documents.
It is true that the decision of the Controller is not justiciable in a Civil Court. It was argued by learned counsel on behalf of the petitioner that the restriction must be held to be unreasonable since the Legislature has not provided for an ultimate decision of the matter by a Civil Court. We cannot accept this argument as correct. A decisive answer to the argument is the decision of the Supreme Court in -- 'Dr. N. B. Khare v. The State of Delhi', AIR 1950 SC 211 (H), in which the scope of the guarantee under Articles 19(1)(d) and 19(5) was fully considered. In that case, the subjective satisfaction of the State Government, regarding the necessity for externment of a person, coupled with a reference of the matter to the Advisory Board, whose opinion had, however, no binding force, was considered by the Supreme Court to be a "reasonable" procedure for restricting the right conferred under Article 19(1)(d). The truth of the matter is that there is no uniform, standard, no uniform pattern of reasonableness which can be laid down in the abstract. The test of reasonableness prescribed under Article 19(5) must depend upon the scope, the subject-matter and the context of each individual statute which is impugned.
That is the principle enunciated by the learned Chief Justice of India in -- 'State of Madras v. V. G. Row', AIR 1952 SC 196 at p. 200 (I) :
"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference which legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, & that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
9. Applying the principle in the present case, it is clear that the impugned Act provides a complete machinery for determining whether the tenant is liable to be evicted or not and in what conditions he can be evicted. It provides a complete machinery for investigation of the matters upon which the jurisdiction of the Controller to order eviction of a tenant depends. There is provision made in the Act for appeal and revision against the order of the House Controller. Section 16 empowers the Controller to make enquiries and summon and enforce attendance of witnesses. In view of these provisions, which are embodied in the Act, it is impossible to accept the argument of learned counsel that the procedure prescribed is unreasonable within the meaning of Article 19(5) of the Constitution. It is true that the jurisdiction of the Civil Court is barred, and the decision of the House Controller is not justiciable, in a regular Court of law. But these considerations are not decisive on the question whether the restriction, from the procedural point of view, is reasonable within the meaning of Article 19(5). The argument of Mr. B. C. Ghosh on this point must, therefore, fail.
10. A third objection presented on behalf of the petitioner is that, even as a matter of construction of Section 11, the House Controller had no jurisdiction to investigate the question whether there was oral agreement between the parties providing setting off of the cost of repair towards the arrears of rent. The argument of learned counsel is that the Controller had jurisdiction under Section 11 only to determine the question whether there was payment or non-payment of rent and that he had no jurisdiction to decide whether there was an oral agreement in existence which provided for setting off of the cost of repair towards the amount of rent accrued. The argument is that the question of the existence of agreement was a question for the Civil Court to decide, and the House Controller had, in this case, usurped the jurisdiction of a Civil Court by deciding that the agreement which was pleaded on behalf of the petitioner was not substantiated.
The argument is interesting, but, in our opinion, wholly unsound. The question whether there was an oral agreement or not was only ancillary to the main question whether there was non-payment of rent. This question the Controller had ample jurisdiction to decide. The Controller had jurisdiction, in express terms of Section 11, to decide the question of non-payment of rent, and) as a matter of necessary implication, he had jurisdiction to decide all matters relevant for deciding the question of non-payment of rent. In the present case, the question of the existence of an oral agreement is relevant for deter-
mining the question of non-payment of rent, and we think that the House Controller had undoubted jurisdiction to decide this question also.
11. A further point was taken on behalf of the petitioner that the Controller did not give an opportunity for producing oral evidence and necessary documents in support of the petitioner's case. It is not alleged in the affidavit of the petitioner that the House Controller was asked to grant adjournment or to postpone the case in order to enable the petitioner to adduce oral or documentary evidence. No such allegation has been made either in Miscellaneous Judicial Case No. 271 or Miscellaneous Judicial Case No. 272 of 1953. If the petitioner was really aggrieved, it is obvious that he should have asked the House Controller to grant postponement of the case in order to enable him to adduce necessary evidence.
It appears from the order-sheet that, on the date the order was passed, the petitioner was present in person before the House Controller and made his submissions upon which the order was passed. On behalf of the opposite party, learned counsel said that there was no allegation in the plaint of the title suit that the House Controller granted no opportunity to the Petitioner to adduce evidence- We are, therefore, not satisfied that the allegation of the petitioner is correct on this point or that the order of the House Controller suffers from lack of jurisdiction on this ground.
12. For the reasons which we have attempted to state, we are of the opinion that no case has been made out for grant of any writ under Article 226 of the Constitution nor for grant of a temporary injunction in the title suit brought by the petitioner in the Court of the Munsiff at Patna. It is also obvious that the questions of constitutional importance raised in the suit have already been decided by this Bench in -- 'AIR 1954 Pat 97 (A)'. There is no reason, therefore, for transferring the suit to the High Court under Article 228 of the Constitution.
13. In the result, Miscellaneous Judicial Case Nos. 271 and 272 of 1953 and Civil Revision No. 477 of 1953 are all dismissed with costs. There will be one set of cost payable to the contesting landlord opposite party. Hearing fee seven gold mohurs.